Mass jailing of undertrials must end

Contact Counsellor

CategoryPolity

Last Updated14/02/2022

During the pandemic, the mass incarceration of undertrials led to a humanitarian crisis in overcrowded prisons.
Prison officials struggled to prevent mass contagion among inmates and staff, even as thousands fell ill and many died.
There is no lockdown on the entry of more undertrial prisoners while their rate of exit from prisons has decreased since the onset of the pandemic.
The issue needs public health & gender sensitive approach, as overcrowded prisons have felt devastating impact of the Omicron variant.

Experts tell us that the main reason for “overcrowding” in our prisons is due to the mass incarceration of pre-trial prisoners.
The penal policy of the state has not focussed on de-criminalisation.
Instead, it has resulted in a shocking 31.8 per cent increase in the incarceration of the number of undertrial prisoners and increase in imprisonment of detenues by 40.1 per cent from 2015 to 2020 (as of December 31, 2020).
Jail is the rule rather than the exception.
The prison statistics of 2020 show that more than 70 per cent of such undertrial prisoners are from marginalised classes, castes, religions and genders.

In 2020, as the national lockdown was announced, the Supreme Court of India issued directions to set up high-powered committees (HPCs) in each state to decongest prisons.
In Contagion of Covid-19 Virus in Prisons, the Supreme Court of India held that “the requirement of decongestion is a matter concerning health and right to life of both the prison inmates and the police personnel working”.
However, most HPCs did not adopt classification based on the right to life or health nor were these gender-sensitive.
Most HPCs treated decongestion as an administrative issue.
One might even argue that the HPC classification adversely impacted bail outcomes and reduced the categories of release adopted by the barely functional undertrial review committees.
The 2020 Prison Statistics report supports this analysis in two ways.
First, it reveals that as compared to 2019, “the release of convicts has declined by 41.2 per cent and the release of undertrials has declined by 19.6 per cent” in 2020.
Second, as compared to 2019, the number of undertrial prisoners increased by 11.7 per cent and the number of detenues increased by 11.4 per cent in 2020.

The pandemic saw the creation of new dockets which were mainly related to violations of “lockdown law” under section 188 of the IPC (disobedience to order duly promulgated by public servant).
In 2019, there were 29,469 cases registered under this section. In 2020, this increased to a staggering 6,12,179 cases.
Other laws were also used, including local laws, leading to 16,43,690 more cases being registered in 2020 as compared to 2019.
No amnesty has been announced for these offences nor has the misuse of the “epidemic laws” seen judicial review.

As prisons instituted a lockdown on public accountability, the rates of custodial deaths have increased by 7.0 per cent in 2020.
So-called unnatural deaths, which include suicides, accidents, and murders in prisons, increased by 18.1 per cent.
There is no information on why 56 inmates died in 2020.
These figures prove that the lockdown rules in prisons increase custodial violence and disease.
These lockdown rules unfortunately are now normalised by the fiction that the HPCs will decongest and oversee the pandemic-induced crisis.
Public interest appeals to the committees to adopt a public health and gender-sensitive classification to decongest the most overcrowded prisons in the country were rejected.

Speedy trial remains one of the best ways to remedy the unwarranted phenomenon of overcrowding.

There should be at least one lawyer for every 30 prisoners, which is not the case at present.

Special fast-track courts should be set up to deal exclusively with petty offences which have been pending for more than five years.
Further, accused persons who are charged with petty offences and those granted bail, but who are unable to arrange surety should be released on a Personal Recognizance (PR) Bond.

An adjournment should not be granted in cases where witnesses are present and the concept of plea bargaining, in which the accused admits guilt for a lesser sentence, should be promoted.